Salaria v Minister for Immigration

[2015] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALARIA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1187

Catchwords:
MIGRATION – Migration Review Tribunal – Employer Nomination Residence (Class VW) visa – exceptional circumstances – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 ss.359C, 476

First Applicant: KRISHNAN LAL SALARIA

Second Applicant: SANJEET SALARIA

Third Applicant: KIMI SALARIA

Fourth Applicant: NITISH SALARIA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1266 of 2013

Judgment of: Judge Street

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Sydney

Delivered on: 6 May 2015

REPRESENTATION

Solicitors for the Applicant: Mr M. Newman
Newman & Associates

Counsel for the Respondent: Mr P. Knowles

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the sum of $5400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1266 of 2013

KRISHNAN LAL SALARIA

First Applicant

SANJEET SALARIA

Second Applicant

KIMI SALARIA

Third Applicant

NITISH SALARIA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal made on 21 May 2013 affirming a decision not to grant the first applicant an Employer Nomination Residence (Class VW) visa.  The application identifies the following alleged grounds of error:

   The Tribunal in deciding whether the applicant met the requirements for an Employer Nomination (Residence) (Class BW) had to decide whether the main applicant came within exceptional circumstances category as his English was below the acceptable standard. It had a raft of material evidencing outstanding skills in the culinary disciplines which was critical to the issue but chose to ignore these commendations and the like when deciding the issue of exceptionality and thus the Tribunal erred in its jurisdiction and in law. 

2. Mr Newman’s submissions sought to advance an argument in support of the ground of the application by reference to a reading of para.15 of the Tribunal’s reasons, as indicating that the Tribunal had failed to have regard to other relevant evidence.  Relevantly, Mr Newman referred to para.15, referring to the following:

   As noted, the first named applicant provided a submission and associated documents to the Department on 14 March 2012 setting out why exceptional circumstances applied in this case.  This is the only information the applicants have provided as to why exceptional circumstances apply. The exceptional circumstances set out in these documents include:

   .……

   ........

   . The employment of the first named applicant has increased the popularity and reputation of the business and he has introduced cost effective new menus. …

3. Mr Newman took the Court to the letter dated 2 March 2012, received by the Tribunal on 14 March 2012, which identified assertions in respect of exceptional circumstances and relevantly annexed a reference, undated, from what was said to be the employer, then relevantly provided in the second paragraph:

   This comprehensive experience in the India cuisine has made Mr Krishnan lal Salaria a vital part at Delhi Darbar Restaurant since 2008, in increasing our business clientele with his innovations and ideas reflected from his incredible experience. Customers especially enjoy Krishnan lal Salaria’s special dishes and desserts which are quite unique to have in suburban restaurant.  [emphasis added]

4. Mr Newman accepted that there was no other material upon which he could rely to support exceptional circumstances.  It is clear from para.16 of the Tribunal’s reasons that the Tribunal was not satisfied that there were exceptional circumstances and relevantly found:

   16. …Having considered the available evidence, the Tribunal is not satisfied that exceptional circumstances apply in this case.

5. That finding of fact by the Tribunal refers to “the available evidence”.  The Tribunal’s reasons must be read as a whole and without a keen eye for error and this finding is contrary to the alleged error. 

6. It is clear this was a case in which the Tribunal wrote to the applicant’s representative, inviting the provision of information on 26 March 2013; drawing attention to the adverse determination of the Tribunal;  identifying the requirement for vocational English; inviting information demonstrating that the first applicant met the criteria under cl.856.213(c)(ii)(A) including any information in relation to exceptional circumstances; drawing attention to the fact that, at the time the application was lodged, there was a nominated employer; and drawing attention to the fact that clause 856.221(a) requires that the appointment referred to in the application has been approved and continues to be available to the first applicant.

7. The letter dated 26 March 2013 also identified the need to provide information to demonstrate that the appointment referred to in the application has been approved and continues to be available to the applicant for the purpose of clause 856.221(a) and (d). The Tribunal identified in the letter of 26 March that the information should be received by 23 April 2013 and identified that, if the information is not received, the applicant may lose the entitlement that would otherwise arise to appear before the Tribunal and give and present evidence of arguments.

8. It is in those circumstances in which the Tribunal recorded that a response was not received to the letter dated 26 March 2013 and the Tribunal decided to proceed under s.359C of the Act to make a decision on the review. I am satisfied that the Tribunal was entitled to so proceed. The Tribunal identified that the applicant thus satisfy each of the subclauses 856.231(a), (b) and (c), the Tribunal making adverse finding in relation to the requirement for vocational English and found:

   10.    The representative indicated in the submission to the Department that although the first named applicant had not sat an IELTS test, his level of English was comparable.  However, although requested, he has not provided any information to demonstrate that he does meet this requirement.  The Tribunal is not satisfied that the first named applicant had vocational English within the meaning of r.1.15B at the time of application.

9. It is in those circumstances the Tribunal made the finding in para 16 above and I am satisfied that the Tribunal did consider the available evidence in support of the alleged exceptional circumstances.

10. There is no substance in the ground of the application as it is clear, reading the Tribunal’s decision as a whole, that the Tribunal had regard to the whole of the evidence advanced by the applicant in relation to the exceptional circumstances.  Mr Newman sought to advance that the Court should infer that the Tribunal failed to have regard to the content of the reference at page 119 of the court book by reason of the absence of reference to the applicant’s innovations in relation to what was said to be the sponsored business. There is no proper basis for any such inference.

11. The further difficulty confronting Mr Newman in that regard is that it is clear the increased business identified in that reference is clearly the source of dot point 3 of paragraph 15quoted above. There is no substance in a contention that the Tribunal failed to have regard to any relevant material or to the relevant material.  Mr Newman did not identify any other material to which it is alleged the Tribunal should have had regard.  To the extent suggested that the finding that the Tribunal was not satisfied of exceptional circumstances was not open, I am satisfied that that finding was open on the evidence before the Tribunal and it cannot be said that that finding lacks an evident and intelligible justification.

12. Accordingly, I am satisfied that there is no jurisdictional error of the kind alleged in the application or as advanced by Mr Newman from the bar table.  Further, this is a case where I accept the submissions of the first respondent that there would, in any event, have been no utility in granting relief, given the further adverse finding made by the Tribunal that the first applicant did not meet the requirements of cl.856.213(a).  That was part of the cumulative requirements for the grant of a visa, not the subject of any challenge and there would be, in those circumstances, no utility in granting any relief, even if the Court had otherwise been persuaded that there was jurisdictional error in the decision of the Tribunal.  For the reasons I have given, I am satisfied there is no jurisdictional error by the Tribunal.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 May 2015